David M. Paciocco

The appellant appealed his conviction for first-degree murder in the fatal shooting of a victim inside a bar.

The critical evidence was security camera footage showing two men in a stairwell moments before the shooting.

The Crown's theory was that the appellant was one of the men and was holding a gun.

The trial judge opined in his jury charge that the dark object appeared to be a gun, despite the Crown's earlier concession that the object was not clearly identifiable as a gun.

The Court of Appeal found that the trial judge's opinion compromised the appellant's right to a fair trial by improperly intervening on a critical factual issue and emboldening the Crown to withdraw its concession.

The court also addressed issues regarding identification evidence and improper Crown speculation about a disabled security monitor.

The appeal was allowed and a new trial was ordered.

The appellant was convicted of communicating with a person under the age of 18 to facilitate an offence of obtaining sexual services for consideration, communication with a person under the age of 18 to facilitate the offence of invitation to sexual touching, and breach of recognizance.

The appellant appealed only the communication convictions, arguing that he had mistakenly texted an undercover officer posing as a 15-year-old escort, believing he had already broken off contact with her and was contacting a different escort.

The trial judge rejected this evidence as not credible based on the timing of messages and the pattern of the appellant's communications.

The Court of Appeal upheld the convictions, finding the trial judge's credibility findings were open to him on the evidence and that the charges were proven beyond a reasonable doubt.

A condominium corporation sought to recover its actual legal costs from a unit owner for pre-litigation correspondence, a compliance proceeding, and appeal-related proceedings.

The unit owner applied for assessment of the legal bills.

The application judge referred only the appeal bills for assessment, finding insufficient special circumstances for the pre-litigation and compliance proceeding bills.

The Court of Appeal allowed the appeal, holding that a third party liable to pay legal bills should receive more favourable consideration than the client who received and paid the account.

The court found special circumstances existed due to the corporation's unsuccessful pursuit of an extreme eviction remedy that was criticized by the trial judge, and the significant disparity between the $52,000 in legal fees and the $2,500 costs award.

All bills were referred for assessment.

The appellants appealed from a Superior Court judgment that enforced a term of Minutes of Settlement between the parties arising from a failed business arrangement and law practice shared between siblings.

The appellants raised two issues: (1) that the application judge erred in refusing to grant an adjournment, and (2) that the application judge erred in concluding that paragraph one of the Minutes of Settlement was a separate enforceable term.

The Court of Appeal dismissed the appeal, holding that the adjournment was properly refused and that paragraph one was indeed a separate enforceable obligation independent of other disputed amounts between the parties.

A 14-year-old boy had been systematically alienated from his father by his mother through years of denigration, false allegations, and manipulation.

The trial judge found the mother had engaged in parental alienation and ordered a reversal of custody, placing the child with the father and suspending contact with the mother for six months to allow for reconciliation.

The mother and the Office of the Children's Lawyer appealed, arguing the trial judge erred in applying the best interests test, imposing an extreme remedy without expert evidence or therapeutic support, improperly delegating decision-making to therapists, and ordering therapy without the child's consent in violation of the Health Care Consent Act.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error and upholding the trial judge's discretionary decision-making in this difficult family law matter.

The appellant was convicted of dangerous driving causing death, dangerous driving causing bodily harm, impaired driving causing death, impaired driving causing bodily harm, blood alcohol over legal limit causing accident resulting in death, and blood alcohol over legal limit causing accident resulting in bodily harm.

The appellant appealed, arguing that the trial judge misapprehended the evidence and failed to consider relevant evidence.

The primary defence theory was that the Crown failed to prove the appellant was driving the van, suggesting the appellant and a passenger could have switched positions.

The appellate court found no misapprehension of evidence and no failure to consider relevant evidence, and dismissed the appeal.

The appellant appealed a judgment granting the respondent's application for enforcement of a 2013 settlement agreement concerning the sale of a veterinary clinic property.

The settlement agreement provided that following a five-year lease extension, the appellant would transfer title to the property to the respondent for $1,250,000 plus HST.

The appellant refused to close the sale in 2018, arguing that the application was procedurally improper, that the agreement was frustrated due to a significant increase in property value, and that specific performance was not an appropriate remedy.

The Court of Appeal dismissed the appeal and upheld the order for specific performance.

The appellants appealed from a motion judge's order dismissing their motion for a declaration that they were entitled to indemnification for legal fees and expenses under a consulting agreement.

The Court of Appeal determined that the order was interlocutory rather than final because it did not address the substantive merits of whether the consulting agreement required advance payment of legal fees or whether there had been a breach.

The court quashed the appeal and noted that the appellants could seek leave to appeal to the Divisional Court or bring a separate application for interpretation of the agreement.

The appellant was convicted of dangerous driving causing bodily harm and failing to stop at the scene of an accident following a November 2015 incident in which his vehicle struck a pedestrian.

The appellant appealed his convictions and sentence, arguing the trial judge erred in failing to apply the W.(D.) test, in providing insufficient reasons, and in failing to adequately address the mens rea element of dangerous driving.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were adequate and the convictions were clearly supported by the evidence.

The sentence appeal was also dismissed as the trial judge committed no errors of principle.

This is a costs endorsement following the Court of Appeal's decision on an appeal from a Superior Court judgment.

The respondent abandoned his right to seek costs under Rule 58.06.

The appellant and amicus curiae reached an agreement on costs, with amicus curiae entitled to costs fixed at $40,000, inclusive of disbursements and all applicable taxes.

An appeal by an NCR (not criminally responsible) accused against the Ontario Review Board's disposition continuing his conditional discharge.

The appellant sought an absolute discharge, arguing the Board erred in finding he continued to pose a significant risk to public safety.

The appellant had been living unsupervised in the community for over a decade with stable mental health and medication compliance.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable based on the appellant's lack of insight into his illness, his history of violence when unmedicated, and concerns that the civil mental health system could not adequately manage the risk of treatment non-compliance.

An appeal concerning the determination of priority between overlapping insurance policies following a motor vehicle collision.

The central issue was the identity of the "lessee" of a rental truck under section 277(1.1) of the Insurance Act.

The application judge found that the driver was the lessee based solely on the face of the rental agreement.

The Court of Appeal reversed, holding that agency principles must be considered when determining the identity of the lessee, and concluded that the company for which the driver was working was the true lessee based on the surrounding circumstances and the longstanding arrangement with the rental company.

The appellant, B.J.T., was convicted of two counts of sexual interference and two counts of sexual assault for shaving his daughter's pubic hair at her request in 2011 (when she was 13) and again in 2013 (when she was 15).

The trial judge struck down the mandatory minimum sentences as unconstitutional and imposed minimal sentences.

On appeal, the Court of Appeal allowed the appeal on the 2011 sexual interference conviction and ordered a new trial, finding the trial judge failed to adequately address the specific intent requirement.

The Court dismissed appeals on the 2013 convictions and upheld the sentencing decisions, including the finding that the mandatory minimum sentences violated the Charter.

The appellant appealed a decision dismissing his application for a declaration of ownership and exclusive use of a disputed strip of land based on adverse possession.

The strip had been enclosed by a fence between two properties from December 1992 to December 2002.

The application judge found that while actual possession was established, the appellant failed to prove the requisite intention to exclude the true owner or effective exclusion.

The Court of Appeal upheld the dismissal, finding no errors of law or principle in the application judge's reasoning and confirming that the presumption of intention to exclude arising from a fence is not mandatory and may be rebutted by the absence of corroborating evidence.

The appellant sued for damages relating to property flooding and brought a motion to extend the time to set the matter down for trial beyond its fifth anniversary.

The motion judge dismissed the action for delay under Rule 48.14(7)(a), finding the appellant had not reasonably explained the delay.

The appellant appealed, arguing the motion judge applied an overly stringent test, misapprehended evidence, and failed to consider the pending summary judgment motion and consent of other defendants.

The Court of Appeal dismissed the appeal, finding the motion judge correctly articulated and applied the legal test and his decision was amply grounded in the record.

An orthopaedic surgeon appealed a trial judgment finding him liable for failing to obtain informed consent before performing total wrist fusion surgery on a 73-year-old professional golfer.

The trial judge awarded $20,000 in general damages and $40,000 for lost income.

The surgeon argued the trial judge erred in applying the causation test, in finding a duty to warn about regional sympathetic dystrophy (RSD), and in misapprehending expert evidence.

The Court of Appeal dismissed all grounds of appeal, finding the trial judge properly applied the law of informed consent and causation, and that her factual findings were entitled to deference.

Crown appeal of sentence for three counts of attempted murder, one count of arson causing damage to property, and one count of possession of incendiary materials.

The accused set fire to his girlfriend's home with the intent to kill her and her two young children (ages 7 and 1) after she asked him to move out.

The seven-year-old suffered severe burns resulting in permanent scarring and loss of functionality in her hands and feet.

The trial judge imposed a sentence of 11 years concurrent on each attempted murder count.

The Crown appealed, seeking a life sentence or elevated sentence.

The Court of Appeal found the sentence demonstrably unfit and increased it to 20 years concurrent on each attempted murder count.

An insurance company appealed a decision denying its application for a declaration that it was not obligated to defend or indemnify a policyholder in a negligence action arising from a dirt bike accident.

The insurer had appointed counsel and defended the action for approximately 10 months before denying coverage based on policy exemptions for unregistered vehicles and vehicles used without consent.

The application judge found the insurer was estopped from denying coverage and refusing to defend.

The Court of Appeal upheld this decision, finding no error in the application judge's finding of detrimental reliance and estoppel based on the insurer's conduct in defending the action without securing a non-waiver agreement or reservation of rights letter.

The appellant sought to set aside a decision of the Court of Appeal pursuant to Rule 37.14(b) on the grounds that he did not receive notice of the hearing.

The court found that the appellant failed to prove that his non-attendance was the result of accident or mistake.

Multiple notices of the hearing date were sent to the appellant's provided residence address, by courier, and by email.

The appellant had a history of delay and had previously made false claims about not receiving documents.

The motion was denied and costs were awarded to the respondent.

On appeal from convictions for possession of cocaine for the purpose of trafficking and breach of recognizance, the appellant challenged the trial judge's rejection of his Charter claims.

The trial judge found an arbitrary detention under s. 9 based on the precipitous arrest for breach of recognizance (the officer failed to verify that the cellphone prohibition remained in force), but rejected the appellant's racial profiling claim.

The trial judge also rejected the s. 8 unreasonable search argument and admitted the evidence under s. 24(2).

The Court of Appeal allowed the appeal, finding the trial judge erred in his analysis of the racial profiling claim and in his s. 24(2) analysis, and ordered a new trial.